Thursday, July 24, 2008

Hot Buttons and Red Lines

I think everyone has a hot button that shouldn’t be pushed; that one thing that will change everything. Once it’s pushed, there will be a reaction and there’s no going back. For some folks, it’s one thing. For others, it will be something else. For me, one of those hot buttons is hurting my kids. If someone or something hurts one of my kids, I’ll react. It’s just a fact of life. I don’t always know what I’ll do . . . but you can be certain I’ll do something.

The Air Force has something like that button, it’s a red line painted around some areas of the flight line. Everyone knows that if you cross the red line, there’ll be a reaction. Chances are better than good that you’ll find yourself face down on the ground (or cement, or whatever), in a spread eagle position, challenged by a member of the Security Forces carrying a weapon and ready to use it on you, if you don’t cooperate. Not a pleasant position to be in. You learn to look for the red lines and you learn not to be stupid or test the system.

So, why am I talking about hot buttons and red lines? Because terrorism, of any kind, needs to be one of those hot buttons that gains a nation-wide reaction. If anyone, whether a state-sponsored actor or an independent operator, commits a terroristic act on our country, they should be treated as if they’ve crossed the red line and committed an act of war on this country.

Before the attacks on 9/11, this country treated acts of terrorism as criminal acts. Of course, they’re criminal acts, and sometimes the right response is criminal prosecution of the terrorist. A good example is Timothy McVay and his terroristic act of blowing up the Morrow Federal Building in Oklahoma City. It was the right thing to do to prosecute McVay and his co-conspirator, and then carry out the authorized punishment by executing him. However, criminal prosecution should not necessarily be the only response option. As the 9/11 Commission Report recognized, our law enforcement system may not be the best mechanism to deal with terrorism. In discussing the response to the first World Trade Center bombing by Ramzi Yousef in 1993, the Report said, “an unfortunate consequence of this superb investigative and prosecutorial effort was that it created the impression that the law enforcement system was well-equipped to cope with terrorism.” (9/11 Commission Report at page 72.) Unfortunately, we seem to default to the criminal justice system more often than not.

There are several things that contributed toward the bias for using the criminal justice system. One was President Clinton’s Presidential Decision Directive 39, issued in June 1995, which called terrorism both a matter of national security and a crime. It is. There is nothing wrong with that statement. However, when the only response is to seek criminal prosecution, you’ve ignored that some terrorist acts are so serious that they cross that red line and must be treated as acts of war. Nevertheless, as the 9/11 Commissioner’s recognized, before the attacks on 9/11, “The existing mechanisms for handling terrorist acts had been trial and punishment for acts committed by individuals; sanction, reprisal, deterrence, or war for acts by hostile governments.” (9/11 Commission Report at page 348.) The problem with using the criminal justice system for punishing individuals and elements of national power, like sanctions, reprisals, or war, for punishing hostile governments, is that you don’t take into consideration terrorism committed by or sponsored by organizations like al Qaeda. “The actions of al Qaeda fit neither category. Its crimes were on a scale approaching acts of war, but they were committed by a loose, far-flung, nebulous conspiracy with no territories or citizens or assets that could be readily threatened, overwhelmed, or destroyed.” (9/11 Commission Report at page 348.)

So what do you do with a “lose, far-flung, nebulous conspiracy” that pushes that national hot button or crosses that red line with a terrorist act? Obviously, you do everything you can to deprive them of support and sanctuary. But how? Do you play “whack-a-mole” and seek out its leaders, where ever located, and bring them back into our criminal justice system for prosecution? Do you prosecute the moneyed-middleman who funnels funds into the organization’s coffers? Do you keep your response focused on investigation and prosecution of terrorism as a crime? Or do you use a military solution, like a pre-emptive strike to attack the organization’s training or logistics areas, or military action to deprive the organization of a sanctuary? I know that criminal prosecution and military action are not mutually exclusive. But is it the right thing for this country to default to criminal investigation and prosecution for acts of terrorism?

In my opinion, our criminal justice system, with its legitimate focus on individual rights and due process, is not necessarily the best system in which to address terroristic acts. By its nature, use of the criminal justice system is reactive. Unless you have proof of a conspiracy to commit a crime, there must have been a crime committed before you prosecute it. It is hard to prevent acts of terrorism when you can’t prosecute the terrorist until they do something criminal, or take a step toward doing something criminal. The only prevention is the minimal deterrence that comes with punishment; something that will not deter a committed terrorist. If our goal is to deter future attacks, we must not rely on the criminal justice system as a means for responding to terrorism. We must be ready, willing, and able to respond militarily. Terrorism, of any type, against our nation, its citizens, or its assets, should be a “hot button” issue. We must consider any act of terrorism as crossing a red line, and let that “lose, far-flung, nebulous conspiracy” know that crossing the red line would prompt overwhelming military actions. Maybe then, terrorists would think twice about pushing the hot button or crossing the red line.

1 comment:

Even now, with the multi-front war against Al Queda and related terrorist groups, our troops are constantly handicapped with overly restrictive ROE, and even worse, officers who go beyond those ROE to impose even more micro-management from a rear area. My brother had more than one occasion where they had a clear target who had recognizably engaged in hostilities, but somebody in the rear got cold feet about authorizing a strike and the target escaped. Some reports indicate that early on, a target believed to have been bin Laden was identified and could have been struck, but staff officers quibbled and the opportunity was lost.

And the various prosecutions of soldiers and Marines on allegations of misconduct, frequently initiated by rear detachments stateside months after the engagements, based on reports by sources known to be biased, has resulted in troops who are always having to second-guess whether they can pull the trigger without going to jail. If a guy takes a shot, starts running away, and the soldier responding doesn't see him throw his weapon to the side, and kills him, but there's no weapon with the body, our troops are afraid they'll then be prosecuted for murder.